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NSW Tenants In Common Transfer (purchase)

Discussion in 'Property Law Forum' started by Leksie5000, 19 September 2014.

  1. Leksie5000

    Leksie5000 Active Member

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    How long should a signed contract for a land transfer (purchase) and mortgage discharge take to go from one solicitor to the other (that of seller), so the other party can sign it? (Purchaser) Is 2 weeks too long?

    Docs were prepared by our solicitor (purchaser) as is a family law matter but in end other party chose to use own solicitor. Perfectly reasonsable. he signed docs 2 was ago.

    Rant below:
    My husband owns a property jointly with his father as tenants in common. About 50k owing. They have a joint bank account with about 20k in it (not actually an offset) so if they each take what they are entitled to from that, the difference is about 15k liability for each left to pay.

    We wish to buy out his father's share and become joint tenants to build a PPOR on the land.

    His father's solicitor advised he signed the transfer over 2 weeks ago. How long should it take for docs to be DXed (inc mortgage discharge instructions) to our solicitor.

    Scenario
    Husband awarded compensation through injury 14 years ago at 18yrs old.
    Father (domineering) identifies property for sale through mutual acquaintance.
    Father arranges to purchase property, in later words "I had to practically bash him to do it".
    We have identified deposit with bank is solely husband's compensation.
    Mortgage is obtained in joint names, title as tenants in common.
    Appears father paid his mate cash on top, perhaps equal to husband's compensation payment so he avoided stamp and his mate CGT. It's rented out to service loan.

    Father says husband should allow his sister (who has no ownership in property) to borrow against it. Husband refuses as is married, looking for land of his own etc for a home. Sister purchases property some other way.

    Husband doesn't wish to pursue issue of original sale, accepts is jointly owned
    Wishes to access equity. Bank will not allow him to borrow against it without father's signature, although tenants in common they are co borrowers. We identified a home, went to conveyancing. Father refused to turn up to bank at last minute (we wished to secure about 40k of the loan).

    Time elapses

    Agreement is had for us to buy out the land so we can build on it (technically it is me as husband and I will be joint tenants, co borrowers also)
    Father tries to say husband should retain greater share, husband refuses (my income is greater income and we need both to buy out, bank would allow me as co borrower but we aren't comfortable with this)
    PRice agreed upon and time to sign docs sent (one solicitor)
    Father refuses to turn up on the very day of the appointment after we've had solicitor prepare transfer. Ok fair enough he wants his lawyer to see it but to decide 30 minutes before the appointment.

    Argument ensues.

    He then asks us to pay him X amount cash under the table, and X amount as listed purchase price. HE feels he will avoid tax this way because we are demolishing the structure and thinks he can only pay tax on the UCV of the land. Our advice and to him,l which he accepted was that it needs to be on the CGT anyway.

    We refuse, not comfortable paying him cash direct. He increases sale price by 25k. We agree as is the valuation amount anyway so fair enough. Better than doing unverified stuff under the table.

    NOw.. we wait. He says he signed two weeks ago, as does his lawyer. Perhaps complicated finances to untangle? Would it have been possible for his father to secure something over the property (like his sister's investment property) without my husband knowing? Could 2 wks be normal to transfer the docs if solicitor is busy? Ours chased it end of last week and Monday but we haven't heard anything since.

    Presumably not binding until I have signed and docs in escrow with our solicitor.. ie he can still pull out? THanks and sorry for the long post. It's all been so awful. It would be easier to sell but he will drag his feet on that as well.. at least this way he is getting $$ out of it and we thought would be a better option.

    He also wanted his real estate agent friend (who rents commercial property from him) to do the initial valuation and was kind of annoyed when we got an independent valuer in quickly..we think he was going to get it valued by his mate at a buy out price too high for us. End of the day my husband has equity he can't access and wants to buy his own home and move on. On top of this, I'm pregnant and we want to build/buy a house to go to..Plus my husband's dream to build there. Sorry for the rant!

    1) Is it binding while we wait for docs to be transferred? I assume not
    2) Is 2wk delay normal?
    3) Could he have secured something over the property without my husband knowing. Of course tenants in common they should be free to deal how they wish. But as my husband found out he couldn't do so anyway due to bank requirements for surety.
    4) We are also worried about his father trying to use all the money in the joint account to discharge the mortgage. At some point he said "you have 25,000 to pay" and didn't seem to mention to the joint account. The account is co-sign.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Leksie500,

    Call the father's solicitor and enquire about the papers. Have they been sent to your solicitors? If so, when have they been sent? There should have been a postage receipt for this. Ask to have them scan/email you the receipt. Alternatively, go to the solicitor's office and pick up the documents and/or ask to inspect the documents.

    If you are concerned about the father securing something over the property, ask your solicitor to do a land search at the Titles Registry.
     
  3. Leksie5000

    Leksie5000 Active Member

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    Thanks Sarah. Yes our solicitor had been chasing. I was just curious I guess as to usual timeframes.

    We are advised docs were DXed Friday so should arrive at our solicitor today!

    Would usual terms be settlement on exchange? We advised are ready to go ASAP.
     
  4. Sarah J

    Sarah J Well-Known Member

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    Hi Leksie5000,

    If documents are DXed, you should have a tracking number and therefore, be able to check where the documents are.

    What do you mean by settlement on exchange and ready to go? This will really depend on whether the documents are correctly filled in. Generally, legal title passes once you register the transfer of ownership with the Land Registry. However, best to speak with your solicitor about exact time frames and procedures because your solicitor knows more about your situation and the property than people on here.
     

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